Let Judges Judge


September 24, 2018 2:59PM

The administrative state—the so-called “Fourth Branch of government” (so called because it is not one of the three recognized by the Constitution)—is a longstanding concern of constitutionalists. The affirmative case for it rests on assumptions that I can now say, as a survivor of the administrative process, are wrong. Under the administrative process, many decisions are first put to a regulatory board of “experts” to pass on a question, even legal and constitutional questions, before it can be presented to an actual court.

For instance, Adam Jackson, a soldier who invented facial recognition software, had to appear in front of the alarm board to unsuccessfully explain to them why his software product was not an alarm under the law. He could not take that question to a court, where you might expect questions like this to be resolved, until he did. Once in a judicial forum, the regulator’s opinions are given special weight, even from a judge that we otherwise would ask to be neutral. Based on our experience, we can decisively say that the process is flawed, and the rationale for judicial deference deeply misguided.

The first justification for the administrative state is that only experts have the expertise to answer these questions. In Adam’s case, the question was whether his software system was an “alarm” under Tennessee law. Watch this.

[Clip of Board asking for definition at 2:49 – 2:50:20 or so. Here is full version

The “experts” on the panel did not know the definition of an alarm, yet these people’s expertise on what qualifies as alarm was the whole reason we had to be there. Why should a court be obligated to defer to the experts’ interpretation of definitions that the experts do not know? On matters of the law, Tennesseans should trust judges to be the experts, as this case so well demonstrates.

The second justification is that agencies are, unlike courts, politically accountable for their decisions. Politically accountable to whom? Suffice to say, most people are not paying much attention to the Tennessee Alarm Board. The only reason to do so is economic—that is, you have a financial reason to care about what this Board does because you work in the field. Thus, the boards do tend to favor existing alarm companies who have every reason to exclude future competitors like Adam. They tend not to be responsive to the aspirational up and comer or to the general public with an interest in greater competition. That’s not a tendency we want to encourage.

For what its worth, at the hearing various members of the Board (certainly not all) were overtly hostile (attacking our expert, a task normally reserved for the other lawyer, or trying to question me, etc.). It was as if they were personally affronted by the hearing itself. The after-the-fact sniping also makes it seem like they have personal feelings at stake.

Cases like Adam’s force us to ask if the agencies exist outside the law. The Constitution vests judicial authority with the judiciary. When it comes to saying what the law is, judges—not alarm installers—are the experts. We shouldn’t give alarm installers special deference in the courtroom. We need a process that prioritizes citizens over regulators.